Deportation Waiver

If you have been deported or removed from the United States, you may need a deportation waiver in order to be able to re-enter. Whether or not you need a deportation waiver depends on how and how long ago you were deported. A deportation waiver is needed for both nonimmigrants, who seek to enter the US to visit for for temporary employment, and immigrants, who seek to live and work permanently in the United States with a green card. Applicants who are also inadmissible under other grounds of inadmissibility (such as a prior visa overstay) will likely need to submit the deportation waiver along with an inadmissibility waiver.

Length of deportation bars

Once a foreign national has been deported or removed from the United States, he or she will be unable to return without a deportation waiver for 5, 10 or 20 years depending on the circumstances surrounding the deportation. Once that time limit has expired, however, the applicant should not need to file a deportation waiver in order to re-enter the US.

5 year deportation bar – Pursuant to section 212(a)(9)(A)(i) of the Immigration & Nationality Act (INA), those who were deported from the United States either upon arrival (expedited removal) via section 235(b)(1) or at the end of deportation proceedings that were initiated upon arrival must apply for a deportation waiver in order to enter the US for five years after the deportation;

10 year deportation bar – Pursuant to section 212 (a)(9)(A)(ii), those who were deported after the end of deportation proceedings initiated after arrival or left when a removal order was still outstanding, and wants to re-enter, will need to apply for a deportation waiver for 10 years after the deportation;

20 year deportation bar – Notwithstanding the above, a foreign national who has been deported more than once must get a deportation waiver for 20 years after the deportation;

Whether applying for an immigrant visa at a US consular post abroad or attempting to obtain a green card in the US using the adjustment of status process, certain applicants who have previously been deported will need a deportation waiver. For immigrant visa applicants, the deportation waiver is filed on form I-212 (Application for Permission to Re-Apply for Admission into the United States after Deportation or Removal). Unlike with 601 waivers (or hardship waivers), where the applicant must usually show that failure to grand the waiver would result in an extreme hardship to a US citizen or lawful permanent resident spouse or parent, whether or not to grant the I-212 deportation waiver is solely at the discretion of the immigration officer. The applicant need not be related to anyone in the US and need not establish that a denial would result in hardship. Instead, an applicant’s waiver attorney must create a waiver package that convinces the immigration official that the waiver should be granted.

Nonimmigrant visa applicants who have a prior deportation on their record must apply for permission to re-enter pursuant to the schedule outlined above. Unlike immigrant visa applicants, however, most nonimmigrant applicants file the deportation waiver using the information 212(d)(3) waiver process. The 212(d)(3) waiver process is used by nonimmigrants to waive almost all grounds of inadmissibility. Like with the I-212 waiver, there is no structured format for approval of a waiver. Instead, the adjudicating officer determines whether or not the waiver should be granted as a matter of discretion. Unlike the I-212 waiver, however, nonimmigrant visa applicants who are applying for deportation waivers must also prove to the immigration official that they have no immigrant intent. Because this person may already have a history of staying in the United States for more than just brief periods of time, preparation of a 212(d)(3) deportation waiver requires the waiver attorney to focus on the applicant’s ties to the home country to prove that he or she will return home once the temporary visa has expired.